OMANE AND ANOTHER v. POKU AND ANOTHER [1972] 1 GLR 295
HIGH COURT, KUMASI
Date: 27 NOVEMBER 1971
BEFORE: ANNAN J.A.
CASES REFERRED TO
(1) Slatterie v. Pooley (1840) 6 M. &W. 664; 10 L.J. Ex. 8; 4 Jur. 1038; 151 E.R. 579.
(2) Boadu v. Fordjour, Land Court, 26 February 1958, unreported. (3) In re Martin [1900] P. 211; 69 L.J.P. 75; 82 L.T. 806; 16 T.L.R. 354; 44 S.J. 449, C.A.
(4) Coleman v. Shang [1959] G.L.R. 390, C.A.
(5) Summey v. Yohuno [1962] 1 G.L.R. 160, S.C.
(6) Osmond v. Hughes, Court of Appeal, 9 June 1967, unreported; digested in (1967) C.C. 108.
(7) Nartey v. Nartey (1953) 14 W.A.C.A. 295.
NATURE OF PROCEEDINGS
ACTION for a declaration of title to two cocoa farms of an intestate on the ground that the plaintiff had allegedly been appointed customary successor. The facts are fully stated in the judgment of Annan J.A. sitting as an additional judge of the High Court.
COUNSEL
Boateng for the plaintiff and co-plaintiff.
C. F. Hayfron-Benjamin for the first defendant.
Mmieh for the second defendant.
JUDGMENT OF ANNAN J.A.
The dispute in this action revolves around one Kofi Boakye, a national of the Ivory Coast, who came to Ghana more than 60 years ago, lived here and married here and also acquired property and died here.
Kofi Boakye, it is admitted, died in about August or September 1965. He left property including cocoa
farms. Two of these cocoa farms form the subject-matter of this action.
Almost immediately after his death, rival claims were made in respect of his estate and since the
contestants were unable, after certain preliminary skirmishes, to settle their differences, one of them,
Opanin Kwaku Omane sued the other Barima Kwasi Poku, claiming as successor of the late Kofi Boakye, a declaration of title to the two cocoa farms, particulars of which appear on the writ of summons, and also for a perpetual injunction and for further reliefs. These farms are at Apatriatom on Nerebehi stool land and are said to have boundaries in the one case with Kofi Siriboe, Afua Dokyiwah, Kofi Boakye, Kojo Addai and Kwabena Akuto and in the other with Kojo Dagarti, Abena Kobi, Kojo Anka and Kwaku Manu.
The plaintiff says in his statement of claim that he lives at Kona, where the late Kofi Boakye lived for
many years and up to his death. [p.299] of [1972] 1 GLR 295 He claims to be a cousin of Kofi Boakye and that they both hailed from the Ivory Coast. The statement of claim states further:
“(4) The said late Kofi Boakye and the plaintiff have lived in this country for over 60 years and have become part of the family of the Bretuo clan in Kona. (5) The said Kofi Boakye died about four months ago and by a unanimous decision of the entire family plaintiff was elected customary successor. (6) Accordingly plaintiff was given possession of the estate of the late Boakye including the two farms the subject-matter of this action. (7) Plaintiff paid the customary drink of £G4 13s. to seal his successorship.”
These paragraphs in the statement of claim set out the basis of the plaintiff’s claim to title. The claim
admits that Kofi Boakye was an Ivory Coast national at all times and the plaintiff’s own position is no
different. The plaintiff contends, however, that Boakye lived in this country for over 60 years and both of them became part of the family of the Bretuo clan in Kona. It was that family that appointed the plaintiff successor to Kofi Boakye.
The defendant in his pleadings denies all the material averments of the plaintiff and puts the plaintiff to strict proof of these averments. He admits that Kofi Boakye came to Ghana from the Ivory Coast “about 60 years ago.” He came with two brothers, Kwasi Kan and Dwobeng. They came to live in Ashanti and stayed with the defendant’s predecessor at Mpankrono. They later moved to Kona. Dwobeng later returned to the Ivory Coast. Kofi Boakye and Kwasi Kan acquired many cocoa farms including the two farms in dispute. They received financial support from the defendant’s predecessor. Kofi Boakye survived Kwasi Kan. He died “about four months ago.” The defendant then sets out the basis of his case in the following paragraphs of the statement of defence:
“(5) Before his death and in gratitude for the assistance given to himself and Kwasi Kan by the
defendant’s said predecessor the late Kofi Boakye made a gift of the two cocoa farms to the defendant
herein. The said gift was made in the presence of many people including the Mpankronohene Kofi
Kontoh, Dediakohene Nana Boateng and Opanyin Owusu Ansah. In their presence the defendant paid the customary aseda of £G4 13s. to the donor. (6) The defendant went into possession of the said cocoa farms after the said gift and remained in possession till the death of the late Kofi Boakye.” The defendant therefore maintains that these gifts inter vivos took the farms out of the estate of Kofi
Boakye. He counterclaims therefore for a declaration of title to the two cocoa farms. [p.300] of [1972] 1 GLR 295 In his reply and defence to the statement of defence and counterclaim the plaintiff joins issue with the defendant on his defence. He contends that he was “one of the party which settled here from the Ivory Coast about 60 years ago, i.e. he came with Kofi Boakye, Kwasi Kan and Dwobeng.” The plaintiff denies that Kofi Boakye ever received any financial assistance from the defendant’s predecessor. He denies the gift to the defendant and maintains that the farms were in Boakye’s possession throughout his lifetime and that just before he died “he even took an advance payment from the United Ghana Farmers Co-operatives Council against his season’s crops.”
Upon these pleadings issues were agreed for trial “as upon the summons for directions,” namely:
(1) Whether or not after the death of Kofi Boakye the plaintiff was appointed customary successor.
(2) Whether or not before the death of Kofi Boakye he gifted the farms in dispute to the defendant.
(3) Whether or not as a result of this alleged gift the defendant went into possession of the farms before the death of Kofi Boakye.
On the pleadings of the plaintiff and the defendant there does not appear to be any dispute that Kofi
Boakye was a foreigner and that he came to live in this country in or before 1906. It seems to me also to be admitted by both sides that Kofi Boakye settled in this country and as the defendant put it “he
emigrated from the Ivory Coast to Ashanti.” It is not however contended that Kofi Boakye became a
citizen of this country or ceased to be a citizen of the Ivory Coast. It seems to me clear from the pleadings and the evidence itself that the effect of both demonstrates conclusively that Kofi Boakye acquired a domicile of choice in this country which he had at the date of his death, which I put at August or September 1965, in terms of the similar averments in that respect in the pleadings. The writ was taken out on 6 December 1965, the statement of claim filed on 15 December 1965 and the statement of defence on 20 January 1966. It is also admitted that Kofi Boakye came to this country with two relatives. The plaintiff, however, contends that he was one of the party. This is denied.
On 13 February 1969 one Kwabena Akuto applied to be joined as co-defendant. In his affidavit in support of the motion for joinder the co-defendant appeared to limit his case to a challenge of the case put forward by the plaintiff. The co-defendant is the son of Kofi Boakye by a woman whom he married at Kona in Ashanti. The co-defendant in his affidavit challenged the plaintiff’s claim to be a relative of Kofi Boakye and asserted that the plaintiff was a mere drummer for his father’s fetish and that the late Boakye stated on several occasions that he had no relative in Ghana. The co-defendant then based his own claim on the law of intestate succession of the Ivory Coast whereby a man is succeeded on his death intestate by his children. The co-defendant did not appear in this
[p.301] of [1972] 1 GLR 295 affidavit to challenge, at any rate directly, the basis of the defendant’s case, namely, the gift inter vivos. The motion was granted.
In his statement of defence and counterclaim the co-defendant maintains that there was no relationship between the plaintiff and Kofi Boakye. He states that:
“(2) [T]he co-defendant says that the plaintiff and Kofi Boakye deceased were not related. The deceased was brought to Ghana by a man called Naafuah. He lived in Pankrono then at Tano Odumase and then finally settled in Kona. He lodged with some members of the Bretuo family but did not become part of that family. The co-defendant denies that the plaintiff was validly appointed successor of Boakye and he maintains that he objected to that appointment whereupon he and the plaintiff were asked to take charge of the estate until such time as a member of Boakye’s family arrived from the Ivory Coast to assume control. The co-defendant was, however, taken ill. Upon his recovery three-and-a-half years later the plaintiff had assumed the role of successor and was solely managing the estate. In his counterclaim the co-defendant puts his own claim on the basis that “as the deceased was an Ivorian and subject to the patrilineal law of succession he is entitled to the possession and control of the property for and on behalf of the family.” He therefore, “counterclaims for a declaration that the two farms in dispute are the family property of the co-defendant of which he is the head…” Again there are no averments in this statement of defence with respect to the pleadings of the defendant, apart from the statement in the counterclaim for a declaration of
title to the two cocoa farms in dispute as the family property of the co-defendant. This lack of pleading by the co-defendants to the claim of the defendant, coupled with the co-defendant’s self-styled position as co-defendant, prompted counsel for the defendant to submit in his address that in such circumstances the co-defendant cannot be heard to put up a title adverse to that of the defendant and that the position must be that the co-defendant is in the case to show that the defendant got title from the co-defendant. Counsel submitted that if the co-defendant was serious he should have joined as co-plaintiff and not as co-defendant. Counsel therefore submitted that there was a misjoinder of the co-defendant and in the circumstances this court could not be called upon to pronounce on the title of the co-defendant as against the defendant since the co-defendant’s joinder postulates a derivative title. This argument, if I may answer it here and now, appeared to me at first to be well founded but then upon further consideration I am now of the opinion that the co-defendant’s case ought not to fail in limine upon this ground of procedure, and I take the view that there is some discretion in the court to put things right to enable the co-defendant’s case to be adjudged on the merits. The position is that the co-defendant, as disclosed upon the evidence,
challenges the claims of both the plaintiff and the defendant. He says the plaintiff was not a member of Kofi Boakye’s [p.302] of [1972] 1 GLR 295 family and therefore had no right to be appointed as successor to his estate and furthermore that Kofi Boakye never became so united with any Ashanti family of the Bretuo clan in Kona as to become, in the eyes of customary law, a member of that family. The co-defendant further claims, (and this arises by implication from his counterclaim and the relief sought therein as well as more definitely on the evidence) that he is entitled to the two farms in dispute. The co-defendant has therefore set up a case adverse to that of the plaintiff and the defendant. In these circumstances the co-defendant clearly was called upon to enter the lists as a contestant or face the charge of acquiescence for standing by and seeing his battle fought by another for the same right. The co-defendant could have sued the plaintiff and the defendant in a separate action. If he did that that action could have been consolidated with this action since the issues
for determination would be the same. That course perhaps strictly speaking may well have been the better course. He, however, did not do that. He sought to join the present action as a party, and having regard to the late stage at which he came forward, that course perhaps was the most expedient action to take in order not to hold up the trial and thus to enable a speedy and less expensive mode of trial and thereby avoid a multiplicity of suits. It was said that the co-defendant, if he were serious, should have joined as co-plaintiff but then in that event the same objections would have arisen since he does not derive title from the plaintiff. Since the co-defendant challenges the claims of the plaintiff and the defendant, then in my view short of instituting a separate action against both of them, he was within his rights to seek to join this action as a party. He could not come in as a third party. He could only come in as a plaintiff or a defendant simpliciter and in the particular circumstances of this case he could I think be more aptly admitted as a defendant than as a plaintiff since there appears to be a larger and more substantial area of dispute as between him and the plaintiff. In effect the co-defendant seeks an adjudication as to the plaintiff’s right to any part of the estate of the late Kofi Boakye and of his right to hold himself out as the person entitled to succeed Kofi Boakye as customary successor. His dispute with the plaintiff therefore goes beyond title to the two cocoa farms presently in dispute between the plaintiff and the defendant.
I have referred to the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), particularly to Order 16 and I think there is nothing in the rules which militates against joinder of the co-defendant and the defendant in the circumstances of this suit. By virtue of rule 4 of Order 16 all persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally or in the alternative and judgment may be given against such one or more of the defendants as may be found to be liable according to their respective liabilities. The plaintiff therefore would have been entitled to sue both the defendant and the co-defendant as defendants to his claim. If that is the true position then the co-defendant was also entitled to seek to join the action as a defendant. That in the event he did so as co-defendant rather than as a [p.303] of [1972] 1 GLR 295 defendant simpliciter ought not in my view to affect the matter of the joinder. That matter, at its worst is a matter of a procedural irregularity that can be cured by the application of the discretion vested in the court by Order 70, r. 1. I note that the application of the co-defendant to join the action was not objected to and nothing was said as to his position as co-defendant in spite of the claim in the counterclaim to a declaration of title in his favour to both farms in dispute. I therefore, in my discretion, amend the designation of Kwabena Akuto the co-defendant to read second defendant in terms of Order 70, r. 1. I am fortified in taking this course by the terms of Order 16, r. 11. That rule enjoins the court to do justice in the case by dealing with the matter in controversy so far as regards the rights and interests of the parties actually before it so that a cause or matter is not defeated by reason of misjoinder of a party. The fourth party in this action is described as a co-plaintiff. He joined the suit some time after he had given evidence for the plaintiff. He is, or claims to be, the head of the Bretuo clan in Kona. He says (in his affidavit) that the “plaintiff and Kofi Boakye became a part of the family of Bretuo clan in Kona,” and upon Boakye’s death that family elected the plaintiff as his successor. When the application was made on behalf of the co-plaintiff I did remark that after the co-plaintiff had given evidence in support of the plaintiff confirming his case as to his appointment as successor by the co-plaintiff’s family, there was no need for the co-plaintiff as head of family to join the action. The claim is that of the plaintiff in the role of successor to the estate of a member of the family upon his death intestate. The head of family is not the successor and does not claim as such; and there is no contest as between the head of family and either defendant. Counsel for the defendant did submit that the co-plaintiff has no locus standi. I think that submission must be right. It is the co-plaintiff’s evidence for the plaintiff that is relevant and calls for consideration. I do not think his stand as a co-plaintiff can be supported.
Turning now to the evidence, the basic issue of fact around which the plaintiff’s case revolves is the
matter of the personal status of himself and Kofi Boakye, first, whether these two persons were relatives, namely, cousins, as the plaintiff said, and secondly whether both or either of them became united with the family of the co-plaintiff at Kona so as to become in the contemplation of customary law members of that family. Clearly these basic matters of fact were hotly disputed by both defendants and the burden was on the plaintiff to prove these matters. Apart from the plaintiff’s own evidence and the evidence of the co-plaintiff there is the evidence of three other witnesses. The plaintiff in his examination-in-chief gave his country of origin as the Ivory Coast. He came from Aboker in that country. He came to Ghana about 70 years ago. There were four of them who came to Ghana. They were Kofi Boakye, Kwasi Kan and Kwasi Dibie. The plaintiff did not say that all four of them came from Aboker, and there is evidence that Kofi Boakye came from Adjeikro the Ivory Coast. When these four persons came they all went to live at Fatasi and later at Tano-Odumasi and from there they all went to live [p.304] of [1972] 1 GLR 295 at Kona in the house of one Opanin Kofi Tom who was their landlord. They went to Kona about 60 years ago. Dibie returned to the Ivory Coast The plaintiff continued:
“I performed the funeral for Kofi Boakye. I was appointed successor to Kofi Boakye. Kofi Tom, the
landlord, helped me to perform the funeral. I was appointed successor by the nephews of Kofi Boakye. As I was the last one of the four left, my landlord appointed me as successor since there were only children. The landlord and his family appointed me successor.”
Then later: “When we all went to live at Kona with Opanin Tom we all became one family with the
family of Tom. The family belongs to the Bretuo clan. I performed the funeral for Boakye and Kan with the family.” And then in cross-examination, he said: “All four of us came from the town of Adjeikro in Ivory Coast.” The plaintiff admitted that Kofi Boakye, Kwasi Kan and Kwasi Dibie were brought together to Ghana by one Opanin Nsafuah from the Ivory Coast but then he maintained that he was one of the party brought by Nsafuah to Ghana. He was then about four, five or six years old. The plaintiff was asked why Nsafuah brought them to Ghana and he answered, “We had decided to come to Ghana when he came and he decided to accompany us to Ghana.” He agreed that Boakye, Kan and Dibie were much older than he was. The plaintiff agreed that he was a drummer of the fetish of Boakye but insisted that as he was with Boakye he assisted him as his drummer. He agreed also that Kwasi Kan married in Ashanti and named his son after Opanin Nsafuah “because of love.” This answer, however, he quickly retracted in the next breath and then maintained that the son of Kan was named after Kwaku Nwoma the fetish. The plaintiff claimed that his mother was the sister of Boakye’s mother. He reiterated his case as to his membership of the family of Kofi Tom. He said, “We joined the Bretuo family of Kona. Kofi Tom was then head of that family. He was succeeded by Kwabena Nti.” The plaintiff it appears had been living and working at Mampong for about ten years before the death of Kofi Boakye and had also lived at other places in Ashanti, apart from Kona.
The plaintiff would not admit that as the oldest Bewere citizen resident in the Kona area he performed the funeral of Kofi Boakye in accordance with a practice whereby the Bewere people joined together to bury their dead in Ashanti. He admitted, however, that Kofi Boakye performed the funeral of two Bewere men although he was not related to either.
The co-plaintiff’s evidence in the main supported that of the plaintiff. He said Kofi Boakye and the
plaintiff were Bewere people who came to Ashanti. They were brothers. The plaintiff succeeded Kofi
Boakye. The plaintiff and Boakye joined the co-plaintiff ‘s family and became members of the Bretuo
clan to which that family belonged. The co-plaintiff agreed that Nsafuah had brought Kofi Boakye and the others in his party to Ghana from the Ivory Coast. Two other witnesses gave evidence for the plaintiff.
They are Kwasi Aninkra and Adorn Kofi. Their evidence is to [p.305] of [1972] 1 GLR 295
the effect that the second defendant Kwabena Akuto had acknowledged the plaintiff as his father’s
brother and successor and that the plaintiff, after the death of Boakye, had introduced himself to the
Farmer’s Council as his successor and had sold cocoa to the council as Boakye’s successor. The
plaintiff’s first witness described herself as the niece of the plaintiff and Kofi Boakye and the daughter of Kofu Amena, sister of Kofi Boakye. She claimed knowledge of the family history as told to her by her mother and her account in the main agreed with the account of the plaintiff.
On the issue of the family connections of Kofi Boakye the defendant called one witness Kwasi Kwame
who claimed to be a relative of Kofi Boakye. He gave an account of how Kofi Boakye was brought to
Ghana. He agreed that it was Opanin Nsafuah who brought them to this country. The purpose was to
avoid their conscription into the army. The plaintiff was not one of them and was not related to them; and is not a member of their family. He identified one Dze Kwasi, the second defendant’s fifth witness, as a brother of Kofi Boakye.
The second defendant also gave evidence in refutation of the plaintiff’s claim to be a relative of Kofi
Boakye and that Boakye became a member of the Bretuo clan in the family of the co-plaintiff at Kona. He called one Kofi Kwadjo who claimed to be a relative of the plaintiff. This witness maintained that the plaintiff was not related to Kofi Boakye. Another witness for the second defendant, Ama Nimo, was the former wife of Kofi Boakye. She maintained also that the plaintiff was not related to Kofi Boakye and was merely his drummer for the fetish. She identified Dze Kwasi as the brother of Kofi Boakye who was acknowledged by Boakye as such. Dze Kwasi himself also gave evidence for the second defendant. He accepted the second defendant’s history about Kofi Boakye’s emigration to Ghana. He was emphatic that the plaintiff was not a relative of Kofi Boakye. The plaintiff, he said, is not known in his hometown.
Upon my consideration of the evidence relating to the status of Kofi Boakye in relation to the plaintiff
and the co-plaintiff, I have come firmly to the conclusion that the plaintiff has failed to discharge the onus on him to prove his relationship and the alleged connection of Kofi Boakye with the family of the co-plaintiff. I find that the case is overwhelming that the plaintiff was not related to Kofi Boakye apart from the coincidence of their common origin from the Bewere district of the Ivory Coast. I find it established that the plaintiff did not come to this country with the late Kofi Boakye and was not one of the party of relatives brought to Ghana by Opanin Nsafuah.
In coming to these conclusions I have found myself impressed by the evidence of the second defendant, and his witnesses, Ama Nimo, Kofi Kwadjo and Dze Kwasi the last of whom I found to be a particularly convincing witness. His evidence completely turned the scales against the plaintiff on the issue of his relationship with Kofi Boakye. The plaintiff’s own evidence on these matters amounted in the main to bare assertions and no attempt was made to substantiate the matters he and the co-plaintiff spoke of. No one was called from the hometown of Kofi [p.306] of [1972] 1 GLR 295 Boakye. No one was called from the Bretuo clan in Kona to support the plaintiff’s case that apart from being associated with the co-plaintiff’s family to some extent Kofi Boakye had actually become so identified with that family as to become a part of it. There is no independent evidence to show that Kofi Boakye had been recognised by other clansmen as one of the Bretuo of Kona. In my view the factual basis of the plaintiff’s case as to the relationship between Kofi Boakye and the co-plaintiff’s family of the Kona Bretuo clan is not satisfactory and I cannot accept that case. Both Ama Nimo and the second defendant Kwabena Akuto were in such proximity to the late Kofi Boakye in his day to day affairs that they would be expected to know who Boakye’s relatives were in Ghana. Both of them denied the plaintiff’s claim to relationship. I do not think it likely that the former wife of Boakye would have denied the status of a man who stood in the position of brother or cousin in law to her. I see no reason why she should deny that relationship if it indeed existed to her knowledge. Again the second defendant was not likely to come to deny before the whole world that the plaintiff was his uncle or indeed to relegate him to the contemptible status of a mere fetish drummer if that man was indeed his father’s blood relative. Dze Kwasi was unhesitatingly acclaimed by both Ama Nimo and the second defendant as the brother of Kofi Boakye and that the witness uncompromisingly rejected the claim of the plaintiff to relationship. Is it likely that he would have done so if the plaintiff was one of them? I think not. As between the plaintiff and this witness I have not the slightest hesitation in preferring the evidence of Dze Kwasi as the truth. He was much the more impressive witness of the two. The evidence of Afua Amponsah is based on the family history as told to her by her mother. She herself is a young woman and has no independent recollection of the origins of Kofi Boakye and the plaintiff. Whatever merit her account could have had was taken away by her assertion that Kofi Boakye and his party were not brought to this country byNsafuah as very young persons. She said they came here on their own to trade. That statement, in the light of the undisputed evidence, is obviously untrue. Boakye and his party did not come on their own. They did not come to trade. It is not disputed that they were brought here as young persons by Nsafuah. Clearly then Afua Amponsah’s version of the family history of Kofi Boakye cannot be trusted. Again Afua
Amponsah went out of her way to state categorically that Kofi Boakye has no brother or relatives alive.
She said they were dead to her knowledge. I do not see on what basis she could have arrived at that
conclusion and she herself provided none. Again she said in effect that Boakye had, when ill, sent for the plaintiff and told him to take his property when he was dead and to look after his children. Omane, she said, was then holding Boakye in his arms. Then he died. The plaintiff himself, and the co-plaintiff for that matter, did not speak of such an unforgettable incident. My own impression of Afua Amponsah is that she spoke of matters of which she had no knowledge and was thus led to depose as to matters which were in my view not matters of truth. I reject her evidence as unreliable. In my assessment of the plaintiff’s case I have taken notice of [p.307] the practice in this country for strangers in our midst, who hail from the same country, or are of [1972] 1 GLR 295-316of the same tribe, to be referred to loosely in common brothers or relatives. It is not unknown for a
tribesman, on the basis solely of a common tribal or other ethnic origin, to bestow the status of a relative on a fellow tribesman, particularly where they happen to live in the same locality in a foreign country.
Where issues of relationship and family—issues of pedigree—fall to be determined the court ought to
view such oral declarations with a certain amount of circumspection where the declarant and the party who relies on the declaration have a common and foreign tribal or ethnic origin. That of course is not a matter of admissibility. It is a matter of weight.
The plaintiff’s case discloses that the Bewere people who lived in and around Kona were a more or less close knit group. Thus according to the plaintiff Kofi Boakye and himself performed the funeral of two Bewere men, Papa Yeboah of Effiduase Nkwanta and Dubi No. 2 although there was no actual
relationship. Indeed following upon this evidence it was suggested to the plaintiff that as the oldest
Bewere man in the Kona—Mampong district he had acted in that capacity to perform the funeral of Kofi Boakye. Although that suggestion was not admitted, the evidence which prompted it is I think of
significance.
The plaintiff’s evidence was rather bereft of detail as to the circumstances in which Kofi Boakye became a part of the co-plaintiff’s family of the Bretuo clan of Kona. All that was put before me is the bare statement of that allegation. Indeed the plaintiff, earlier in his evidence, referred to Kofi Tom the co-plaintiff’s predecessor as his landlord. It is a natural phenomenon for strangers who go to live among other people to be associated with a landlord in whose house they would go to live. If they stayed there long enough they would become more and more closely associated with the landlord and his family in various respects. The easiest and perhaps earliest association would be in the matter of funerals. The stranger would no doubt go to the assistance of his landlord on such a solemn occasion and this assistance could be by way of moral support, physical presence or financial contribution. These are mere manifestations of goodwill and do not, in my view, amount in themselves to sure indications of identification with the landlord’s family as members thereof. They would in my view be no more than the usual gestures of goodwill emanating more from the dictates of courtesy and good neighbourliness than from the duties and obligations of family. Where such strangers are also aliens, these gestures ought not in my view to have any weight attached to them per se as reliable indications of relationship. Thus may the man from Akwapim or Krobo go to farm in an Ashanti village and live and die among his new neighbours and be associated closely with an Ashanti family and yet not lose his own family relationship or become so totally assimilated with an Ashanti family as to become a part of that family. Where such a stranger is not a Ghanaian there ought in my view to be strong and weighty evidence to enable the court to decide [p.308] of [1972] 1 GLR 295 in favour of a claim of relationship. There should be evidence of participation in the councils of the family on the same footing as the other members so also evidence of overt acts of acceptance by the family and the clan. The plaintiff’s case in my view falls short of this standard.
With regard to the matter of the group of young persons brought to Ghana from the Ivory Coast about 60 years ago, I find that the plaintiff was not one of that group. I find that the members of that group were Kofi Boakye, Kwasi Kan and Dibie. All these persons came from Adjeikro. The plaintiff himself said that he came from Aboker. Again the plaintiff said that the members of the group had decided to come to Ghana on their own and Opanin Nsafuah accompanied them to Ghana. In view of the admitted youthfulness of Boakye, Kan and Dibie at the time of their arrival in Ghana and in view of the plaintiff’s own evidence that he himself was four, five or six years old at the time he came to Ghana I find it much more likely that the group were sent to this country by their grandfather to avoid conscription than that they off their own bat decided to emigrate. I find the plaintiff ‘s version wholly untenable.
I have considered the evidence of the plaintiff’s third and fourth witnesses. Aninkrah’s evidence was to the effect that the second defendant had said that the plaintiff was his father’s brother and his successor.
This statement was said to have been made when the second defendant went to Aninkrah for a loan after the death of his father and the latter had insisted on a surety. Omane had signed the promissory note as a surety. It seems to me clear from Aninkrah’s evidence that he had insisted on the usual pre-conditions of having a surety who was sufficiently close to the debtor. The second defendant does not deny the loan transaction or that the plaintiff stood surety for him, but then he suggested to Aninkrah that he had not described the plaintiff as his father’s brother or successor. The promissory note was not available as an exhibit and Aninkrah himself admitted that the plaintiff signed the note merely as a surety. In the light of the other evidence on record on the issue of relationship and having regard to the particular circumstances that the occasion was a loan transaction, I do not see that Aninkrah s evidence makes any significant dent in my assessment of that issue. Aninkrah himself did not know of any relationship and the statement he attributes to the second defendant, is, I presume, being relied upon either as an informal admission or to contradict the second defendant’s oral testimony before me or both. The general rule is that any relevant statement made by a party is evidence against himself. “Whatever a party says is evidence against himself or what a party himself admits to be true may be presumed to be so,” per Parke B. in Slatterie v. Pooley (1840) 6 M. & W. 664. However, the weight to be attached to such a declaration is another matter and does vary with the circumstances. The weight of the admission depends on the circumstances under which
it was made and these circumstances when looked at may well enhance or diminish the force and effect of the admission. Looking at the circumstances in which the second defendant was said to have made the statement [p.309] of [1972] 1 GLR 295 I observe three things, first that he needed a loan, secondly that Aninkrah had insisted on a surety and thirdly that the plaintiff was appointed by the co-plaintiff’s family as successor to Boakye. In these circumstances it seems to me much more likely that the second defendant did describe the plaintiff as his father’s brother and successor than that he did not; I do not think however that Aninkrah’s evidence is deserving of any great weight on the issue of relationship. The plaintiff claims to be a relative not a brother of Boakye and in the light of the views I have expressed earlier in this judgment about the use of such expressions in common parlance, I find myself unimpressed by the evidence. The other witness for the plaintiff, Adorn Kofi, gave evidence of the plaintiff’s declaration some time in 1966, after the death of Boakye, that he was the successor of Boakye. That statement is of course self-serving and in any case was made after the institution of the action in 1965.
To sum up the law as to the issues of relationship and succession, the law is that a successor is appointed by the family of the deceased, and that is, the group of persons in whom is vested the right to benefit on the death intestate of a member of the group. The head of family as the head of the group meets with the other members or elders of the group to make the appointment. If an intestate does not belong to the group then no right vests in the group upon his death intestate to make an appointment, since they have no beneficial interest known to the law in his estate. Family groups are the basic units of association in Ghana and every person who is indigenous normally belongs to such a group. The rules of pedigree are well known both in the matrilineal and patrilineal areas. Where however a person, such as an alien, does not qualify for inclusion in any family group or where he is a Ghanaian who is a stranger in the customary law sense, the law itself recognises that in certain circumstances he could, by a legal fiction, be included in a family group as a member thereof. He may become such a member by adoption or by commendation under the customary law or under statutory procedures for adoption. Sarbah in his Fanti Customary Laws (2nd ed.) puts the matter in this way of the Fanti (and generally of the Akan one may add). He stated at p. 33 that:
“A Fanti family consists of all the persons lineally descended through females from a common ancestress, provided, that neither they nor those through whom they claim to be the descendants of the common ancestress had severed their connection with that root by— . . .
(ii) Adoption … (iv) Commendation.”
With regard to adoption Sarbah has this to say at p. 34:
“(ii) Adoption is practised by persons who have no next of kin to succeed to their property. The person adopted is usually of the same clan as the person adopting, but if of a different clan, he assumes the name given him and becomes a member of his clan. To make adoption valid, it must be done publicly, and the person who wishes to adopt must not only get the consent of the family and parents whose child [p.310] of [1972] 1 GLR 295 is about to be adopted, but he must clearly state before witnesses his desire and intention. A personcannot adopt another outside his tribe. On account of the custom of descent, which is traced through the female line, it is more usual to adopt females in preference to males.” And about commendation he states at p. 35 that:
“When a person is anxious to enter another man’s family, so that he may share in the protection and
privileges which the members thereof enjoy, he goes before the head of the family, and formally transfers himself and his worldly possessions into the safe keeping of his new protector. Such is the ordinary commendation.” Again at p. 45 he says that:
“According to the law of the country, every person is the member of some family, and all the other members of that family are answerable for him. In theory, the stranger belongs to the family of the person with whom he lodges, to whom he came, or who is his landlord.”
Rattray in his Ashanti Law and Constitution (1969 ed.) at p. 71 speaking of adoption put the matter in this way:
“Adoption into a clan was achieved by the slow and almost imperceptible process of time rather than by any public ceremony. It applied almost wholly to the descendants of slave women and to their descendants, who grew up to consider themselves members of the clan which had originally purchased their ancestress. Such persons, though nominally free members of the kindred group to which they now belonged, never entirely lost their original status, which would always be known, at least to the head of family.”
Ollennu’s Principles of Customary Land Law in Ghana at p. 159 contains the following passage which
derives its authority principally from Sarbah:
“The Ghanaian family whether matrilineal or patrilineal, is a circle of persons who have a community of origin, relationship of consanguinity real or adoptive. Thus by customary law the stranger’ is a member of the family of the person with whom he lodges, or of the family of his landlord, or of the family to which he voluntarily attaches himself upon giving drink to the head and elders thereof, i.e., by commendation, and if not attached to any particular family, he belongs to the family into which he marries.” Again at pp. 76-77 he states that:
“By customary law if a stranger becomes domiciled, and identifies himself or herself with the family of his host, or marries a subject and identifies himself or herself with the family of the spouse, the stranger is regarded for all purposes as a member of the family with which he so identifies himself. Sar.F.C.L. (1897) 38 [sic] and the domestic law which governs him is the customary law of the tribe of family of his adoption. Upon the death of such a stranger the family [p.311] of [1972] 1 GLR 295
with which he or she was identified has to bury him or her, but must inform the chief or headman of the town. If the stranger was not identified with any particular family, the responsibility of burying falls upon the chief or headman of the town. The expenses of his burial may be paid out of his property, if he left any, otherwise it must be paid either by the family or by the chief, as the case may be. If he left a farm made on general stool land, that farm will be held by the stool, and if no relations come forward to introduce themselves to the stool and pay the customary fees, the farm will become stool property. That is so whether or not he was buried by a family, but the expenses of his burial will be paid out of the proceeds of the farm, and if he left children by a subject of the stool, the stool will surrender the farm to the children as subjects with determinable title in it.”
In Boadu v. Fordjour, Land Court, 26 February 1958 quoted in Ollennu (supra) at p. 77 the court held that:
“By customary law a farm made by a stranger on stool land becomes the property of the stool when that stranger dies without successor and is buried by the stool. But that custom only applies to farms which the stranger made by cultivating the virgin forest of the stool land and not to a farm which he made on land which had become property of a subject.”
In the light of these principles a clear distinction must I think be drawn between cases of complete
identification, that is, cases where a stranger has become so identified with a family as to become a
member of that family on the same footing with regard to the incidents and liabilities, privileges and
rights of such membership as other members thereof and cases of close association merely with a family.
In my view an alien stranger will not become so identified with a Ghanaian family as to become in the eyes of customary law a member of that family merely by being a tenant of the head of that family or of another member of the family. In the context of the social conditions of today that broad position is clearly untenable. Again merely doing things in common with a family ought not per se to amount to a case of membership. I think the whole evidence must be looked at to determine whether there is that degree of participation and association as would be sufficient to show a case of complete identity with the family, and the evidence of participation and association must be clear and unambiguous. Such evidence would be instances of regular deliberation with the family, participation in appointments to office in the family circle, performance of common burial and funeral rites, marriage into a branch of the family and the giving in marriage by the head of family, succession to property within the family, the taking of the family name for one’s issue and reception into the clan to which the head of family belongs. The burden is on the person who alleges such identification and who relies on it. In my view the plaintiff’s case does not discharge the burden of proof on the issues of his relationship with Kofi Boakye [p.312] of [1972] 1 GLR 295
as well as that of membership of the plaintiff and Kofi Boakye in the family of the co-plaintiff of the
Kona Bretuo clan. That family therefore had no right to appoint a successor to the estate of the late Kofi Boakye and the plaintiff was not qualified for such an appointment.
I turn now to the issue of title raised by the plaintiff, the defendant and the second defendant as to the two cocoa farms now in dispute. The plaintiff, not being the lawful successor, has no justifiable claim to title.
The co-plaintiff is in no better position. The issue then as to title falls to be determined as between the second defendant and the defendant. The defendant relies on a case of a gift inter vivos. The second defendant denies the gift. The burden then is on the defendant to prove the gift. The second defendant himself relies on the rules of intestate succession of the Ivory Coast, the national law of the deceased. His case seems to me doomed to failure on that basis. Ivorian law seems to me to have no application to this case. It is the national law of the deceased and is neither the law of the domicile of the deceased at death nor the law of the lex situs. Since the deceased’s domicile of origin, Ivory Coast, had given way to one of choice, Ghana, before he died, I see no basis for the application of the law of the Ivory Coast as the national law. The subject-matter of the dispute is immovable property in the Ashanti Region of Ghana—farms made on land of an Ashanti stool. The deceased was in any case indisputably domiciled in Ghana. By the rules of private international law of this country whether or not he was domiciled here has to be determined by the law of Ghana. Per Lord Lindley M.R. in In re Martin [1900] P. 211 at p. 227, C.A., “The domicil of the testatrix must be determined by the English Court of Probate according to those legal principles applicable to domicil which are recognised in this country and are part of its law.” By that law intestate succession to immovable property is governed by the lex situs and not by the national law.
Accordingly the Ivorian law of intestate succession cannot apply on the basis that it is the national law of the deceased, and since that is the avowed basis of the second defendant’s claim to title that claim cannot succeed on that basis. What then of an assessment of the position of the second defendant in terms of the lex situs? I see here some problems as to choice of law since the deceased was not a Ghanaian national and, as I have found, was not so identified with a Ghanaian family as to have become a member of that family and therefore subject to the same customary law. The deceased was not subject to customary law as his personal law. What then is the lex situs for the purpose of intestate succession to his immovable property? That is the law of the country where the property is situated. Intestate succession in Ghana for our present purpose is governed by the rules of the customary law or by such English statutes of general application as are in force and relevant. The position as to such statutes and their application was set out in the case of Coleman v. Shang [1959] G.L.R. 390, C.A.
If the defendant’s case as to a gift should fail in its turn then the curious position will be that all parties would have failed on their specific claims as to title and the matter will have to be determined on the basis [p.313] of [1972] 1 GLR 295 of possession and the applicable English statutes of general application as to intestate succession.
The defendant’s case as to a gift depends on his own evidence and that of a number of witnesses called to support that case. The evidence is that the deceased Boakye, about two months or so before he died, went to Pankrono from Kona where he lived and there in the presence of the chief and some elders of Pankrono made a presentation of the farms in dispute to the defendant. Upon that evidence Boakye did go to Pankrono and there before the chief and his elders presented two farms in dispute to the defendant in appreciation of the services of the predecessor of the defendant to Boakye and his relatives. The evidence is that Opanin Nsafuah who brought Boakye to Ghana and who must have cared for him in his youth was connected with the defendant’s stool. The evidence of the gift is in my view not free from difficulty.
There are certain conflicts in it and the accounts of the defendant and his witnesses do not tally in all
respects. Thus there are conflicts in their accounts as to the matter of the aseda and how much of it was given out to Kofi Boakye and as to statements made by the persons present at the meeting. Again Boakye went alone to Pankrono unaccompanied by any close associate or a member of his patrilineal family or even a friend. Again one may well ask why the purported gift was made at Pankrono and not at Kona where Kofi Boakye lived. Again although the defendant pleaded that he went into possession before Boakye’s death and remained in possession his evidence shows that he sent one Yaw Nsiah a former linguist of Boakye who knew the boundaries to go to inspect the farms on his behalf. The evidence of Yaw Nsiah himself shows that although he says he went to inspect the farms before the death of Boakye he did not do anything about the farms in Boakye’s lifetime. Apart from inspection of the farms before the death of Boakye he actually started to look after the farms and to take actual charge and control of them after Boakye’s death and according to Nsiah Boakye plucked the cocoa until he died. With regard to the conflicts in the evidence it is my view that these conflicts as to matters of detail do not have the effect of discrediting the evidence of the defendant and his witnesses on the matters of substance as to the case of a gift inter vivos. The witnesses were all united in their evidence that Boakye did go to Pankrono to the house of the Odikro where the presentation was made and aseda provided by the defendant at the request of the Odikro. I do not think that the Odikro and his elders had conspired with the defendant to put up a false case as to the gift and these conflicts notwithstanding I accept their evidence as to the presentation at Pankrono of the two farms at Apatriatem by Kofi Boakye to the defendant as gifts as I believe that their evidence is in substance the truth of the matter. As to the matter of the absence of any persons on the side of Kofi Boakye and the fact that the presentation was made at Pankrono and not at Kona these matters at first would appear to lend a suggestion of lack of probability to the defendant’s case as to a gift. However,
on further consideration I come to the conclusion that this need not be so. Kofi Boakye, as I have found, [p.314] of [1972] 1 GLR 295 had no relatives in Ghana, and he had ties of residence and close association with Pankrono because of the circumstances attendant upon his arrival in Ghana. Nsafuah his original guardian had ties with Pankrono and clearly before Boakye went to live at Kona later on in his life, he did live at Pankrono with Nsafuah. Boakye had already given a farm to his eldest son, the second defendant, and in any case the second defendant need not be present. In the particular circumstances of the position in which Boakye was I do not see that the fact that there were no witnesses present on his side detracts from the probability of the gift. In my judgment I find it established that the presentation of the two farms at Apatriatem, the subject-matter of this dispute, by Kofi Boakye to the defendant was made as claimed by the defendant and his witnesses, at Pankrono about three or two months before Boakye died.
What then in law was the effect of that presentation? The gift was said to be a gift inter vivos in terms of customary law. I do not think that on the evidence there is a case of a gift in contemplation of death made out. I see no evidence of samansiw or a donatio mortis causa. It is true Boakye died two or three months after the gift. He was no doubt advanced in age at the time. There is, however no evidence of indisposition or that death was contemplated by him. Indeed if he had been in that physical or mental state he could hardly have travelled to Pankrono for the ceremony. The gift therefore stands or falls depending on whether its presentation satisfies the rules of customary law. In this connection the paramount issue for consideration is the matter whether or not the gift was accepted in the lifetime of the donor by the donee.
Whether or not there has been acceptance is a matter of law. In my consideration of the principles and case law on the issue of acceptance I do not think it right to say categorically that in customary law there can be no case of acceptance of a gift inter vivos of immovable property without proof of actual possession. In my view what is required to be proved is the matter of acceptance of the gift, and this may be proved in a number of ways. Sarbah (supra) says at p. 81. that:
“Acceptance is made— (i) By rendering thanks with a thank-offering or presents, alone or coupled with an utterance or expression of appropriating the gift; or
(ii) Corporeal acceptance, as by touching; or
(iii) Using or enjoying the gift; or
(iv) Exercising rights of ownership over the gift.”
Ollennu in his Principles of Customary Land Law in Ghana at pp. 112-113 puts it rather differently in that he appears to draw a distinction between acceptance of the gift and delivery of the land by the donor to the donee, and he puts down both matters as separate conditions for validity. Bentsi-Enchill in his Ghana Land Law (1964) at pp. 364-365, however, seems to adopt a stand nearer the stand of Sarbah than that of Ollennu. He states: [p.315] of [1972] 1 GLR 295 “[T]he functions of formal public acceptance outlined above serve to minimise the significance of delivery as the test of a donation. Delivery may take place, in fact usually takes place, before formal acceptance; … Accordingly, in the event of any major gift likely to arouse envy or opposition—such as a house, land, a farm and significant movables—the essential gift-perfecting requirement, we submit, is the aseda or thank-offering made in the presence of witnesses.” Bentsi-Enchill cites in support of his submission another view of Danquah in his Akan Laws and Customs at p. 219 that:
“Whenever a gift is made, and especially when the thing given is in the form of landed property, it is always customary to give drink or money thank-offering to the person making the gift in the presence of witnesses.
When this is done the transaction is complete.”
The case law on the subject is revealing. The leading case often cited in this respect is Summey v.
Yohuno [1962] 1 G.L.R. 160, S.C. where the law is set out. The fourth condition set out in that decision at p. 164 by the Supreme Court per Azu Crabbe J.S.C. is, “(4) that the donee accepted the gift and went into possession of the land either physically or constructively, during the life-time of the donor.” He then went on to state at p. 165 that “an essential attribute of a gift inter vivos is that the donee must enter into possession during the life-time of the donor. In other words the gift must be accepted.”
The position was however again considered by Azu Crabbe J.A. in the later case of Osmond v. Hughes, Court of Appeal, 9 June 1967, unreported; digested in (1967) C.C. 108, where he referred to Summey v. Yohuno (supra) and also to the case of Nartey v. Nartey (1953) 14 W.A.C.A. 295 and to the judgment of Coussey J.A. therein at p. 297 where he said:
“Mr. Sarbah, states several forms of acceptance as necessary to evidence a valid gift of immovable property but it must be observed that if one of them is supplied it is sufficient. In this case there is evidence of publicity in making the gift and user by the donee in that the deceased erected a building for her on the land before his death.”
The emphasis is mine. It seems to me that taking together the later views of Azu Crabbe J.A. (as he then was) in Osmond v. Hughes (supra) and the approval therein of the dictum of Coussey J.A. in Nartey v. Nartey (supra) the position now is that the original statement of Sarbah as to the various modes of acceptance of a customary law gift of real property must be held to be firmly reinstated as the dominant and true view of the law. On that basis the aseda in the presence of witnesses and in public is sufficient to constitute acceptance of the gift and the matter of possession becomes a matter of evidence to test the probability of what the donee says. Obviously if a donor remains in possession for a number of years after a purported gift is alleged to have been made that fact is as matter of evidence inconsistent with the case as to a gift. On the other hand if a donor dies suddenly
[p.316] of [1972] 1 GLR 295 two or three months after a gift is alleged to have been made, and while still in possession, the issue of gift or no gift ought to be determined on the basis whether or not the gift was accepted in any of the several modes set out by Sarbah.
As to the fact of acceptance by the defendant there is clear evidence of an aseda and acceptance of his
share of it by Boakye. I find therefore that the defendant accepted the gift that was made to him by
Boakye publicly in the presence of witnesses. Did the defendant go into possession? He says he did in the lifetime of Boakye. His stand, however, finds no support in the evidence of Yaw Nsiah who was called to furnish this support. Nsiah at first said he went to take charge before the death of Boakye. Later, however, he said it was after Boakye’s death that he actually took charge. Clearly Nsiah’s performance as a witness leaves me with no alternative but to rule him out as a reliable witness since he contradicted himself in cross-examination on the issue of actual possession. That leaves the defendant’s case as to possession in a precarious state, since he himself did not say that be went on the land personally, and there is evidence that Boakye remained in possession till he died. I find however that the defendant accepted the gift and gave an aseda for it in the presence of witnesses. In my view that was enough and since Boakye died a few months after the gift, the fact that he continued in possession till his death ought not, as matter of evidence, to detract from the probability of the defendant’s case as to a gift. I accept that case both on the facts and on the law. I accordingly find that the farms in dispute were given to the defendant as a gift by Boakye in his lifetime and that the defendant accepted that gift.
In conclusion then the plaintiff must fail against both defendants and judgment is entered against him on his claim. The second defendant fails on his counterclaim, for title, and judgment is entered against the second defendant on his counterclaim. The defendant succeeds on his counterclaim and judgment is entered for him against plaintiff and the second defendant for a declaration of his title to the two farms in dispute.
As to costs I think the plaintiff and co-plaintiff must pay costs to the second defendant and the defendant.
I assess costs of N¢250.00 inclusive for the defendant against the plaintiffs and of N¢150.00 for the
second defendant against the plaintiffs. As between the defendant and the second defendant I assess costs of N¢150.00 inclusive for the defendant against the second defendant. I award costs as set out above.
DECISION
Plaintiff’s action dismissed.
Judgment for first defendant on his counterclaim.
Second defendant’s counterclaim dismissed.
